Jeremy D. Morley concentrates on International Family Law. The firm works with clients around the world from its New York office, with a global network of local counsel.
Mr Morley is the author of "International Family Law Practice", the leading treatise on international family law in the U.S., and "The Hague Abduction Convention", published by the American Bar Association. He is a Fellow of the International Academy of Family Lawyers and a former law professor.

Friday, February 27, 2015

SEOUL
–South Korea’s Constitutional Court on
Thursday struck down a controversial law outlawing adultery and threatening
violators with jail.

It marked the fifth time in
25 years that the court had considered the constitutionality of a 1953 statute
which made South Korea one of the few non-Muslim countries to regard marital
infidelity a criminal act.

The statute was not a
historical quirk that simply gathered legislative dust. In the past six years,
close to 5,500 people have been formally arraigned on adultery charges —
including nearly 900 in 2014.

But the numbers had been
falling, and cases that result in prison terms were increasingly rare.

Whereas 216 people were
jailed under the law in 2004, that figure had dropped to 42 by 2008, and since
then only 22 have found themselves behind bars, according to figures from the
state prosecution office.

The downward trend is partly
a reflection of changing societal trends in a country where rapid modernization
has frequently clashed with traditionally conservative norms.

In April last year, South
Korea blocked the newly launched Korean version of the global adultery hook-up site
Ashley Madison, saying it threatened family values.

Under the law, adultery could
only be prosecuted on complaint from an injured party, and any case was closed
if the plaintiff dropped the charge — a common occurrence which often involved
a financial settlement.

The law was grounded in the
belief that adultery challenges social order and damages families, but critics
called it an outdated piece of legislation that represented state overreach
into people’s private lives.

The debate over its future
simmered for some time, bubbling over from time to time especially if a public
figure fell foul of the statute.

Such was the case in 2008
when one of the country’s best-known actresses, Ok So-ri, was given an
eight-month suspended sentence for adultery.

Ok had unsuccessfully
petitioned the Constitutional Court, arguing that the law amounted to a
violation of her human rights in the name of revenge.

The court had previously
deliberated the issue in 1990, 1993 and 2001, and in each case dismissed the
effort to have it repealed.

But the petitions came ever
closer to securing the support of six members of the court’s nine-judge bench
required to strike the statute down.

In 2008, five of the justices
deemed the law to be unconstitutional, arguing that adultery could be condemned
on moral grounds but not as a criminal act.

The law was originally
designed to protect the rights of women at a time when marriage afforded them
few legal rights, with most having no independent income and divorce carrying
enormous social stigma.

“But it has long lost that
relevance,” said Kim Jung-Beom, a lawyer and specialist on family law.

“For a start, the number of
female ‘offenders’ has increased, and in some ways the law has become a way of
naming and shaming women,” Kim said.

He also noted that other laws
now provided women with greater legal security in their marriages, and a fair
division of assets in the event of divorce.

Defenders of the statute said
its loss would encourage sexual license, an argument which Kim said has “not a
shred of evidence” in support.

Thursday, February 26, 2015

A court in Ontario, Canada has declared that the interpretation and application of the Hague Abduction Convention by two Polish courts was dead wrong and "repugnant to the objectives of the Convention."

The order dated February 12th 2015 by Justice David Price of the Superior Court in Ontario inNowacki v. Nowackipulls no punches in taking grave exception to the Polish courts' serious misapplication of the grave risk exception to the obligation to return abducted children to their habitual residence.

The family lived in Ontario, Canada and had visited Poland in 2011 but the mother had since then improperly retained the child there. The father had brought a divorce and custody case in Ontario and the Ontario court had given temporary custody of the child to the father, and ordered the mother to return the child to Ontario "without prejudice to Ms. Nowacki's right to assert her own claim to custody of A in this court."

The father then brought a Hague case in Poland.

The Polish court then took approximately 18 months to decide the case and denied the petition. It acknowledged that there had been a wrongful taking, that the child's place of habitual residence was Canada, and that the child's father was a good parent, stating that "it is beyond doubt that the child was looked after effectively by the two parents." However, the court found that there was a "grave risk" to the child if he were returned to Canada because separation of the child from his mother would "disturb his feeling of safety and stable life," would be "unfavourable to the child's development" and "detrimental to the child's welfare." A Polish regional appellate court then upheld that ruling.

The mother then asked the Canadian court to "respect" the Polish rulings by dropping its various court orders against her and dismissing the divorce (and custody) case. She claimed that her prior refusal to adhere to the Canadian court orders had been legitimized by the Polish decision.

Justice Price refused. He stated that the Polish rulings were dead wrong, insisting that "a decision that equates a risk of serious harm with returning A to Ontario where his father resides, is repugnant to the objectives of the Convention and to the objective it serves, namely the protection of all children who are at risk of international child abduction...the courts in Poland acknowledge that Mr. Nowacki was a good father and that he represents no risk of harm to A."

Hence, there was no grave risk, as the grave risk exception is restricted to "cases where conditions in the requesting country, with all the protections that its courts afford, would still leave the child at risk of severe harm." The shared purpose of the Hague Convention was therefore ignored by Poland due to its lack of adherence to the terms of the Convention.

The courts in Poland had muddled the line between a grave risk analysis and a best interests analysis, as well as giving priority to the mother's interests over that of the father's interests. Justice Price interestingly noted further that "the failure to engage in judge-to-judge communication in the present case was a lost opportunity for the courts of both nations."

Accordingly Justice Price stated that, "for the court to permit her motion to proceed it would amount to a dereliction of its duty to A. It would reward Ms. Nowacki's disregard of his best interests, including his right to have a relationship with both his parents."

For these reasons, the mother's motion was dismissed, the divorce judgment was rendered final, and costs were awarded to her ex-husband.

This case illustrates all too well how easy it is to misapply and sabotage the Hague Convention by failing to interpret the grave risk language narrowly.

It is also quite refreshing for a judge to employ direct language to criticize the courts of another country for violating their obligation to apply a treaty in accordance with its terms and fundamental purpose.

Friday, February 20, 2015

Expert testimony is frequently needed in
international family law cases.

International family lawyers are frequently
called upon to act as expert witnesses.

Such testimony is often secured in cases
concerning international child abduction, particularly in cases in which one
parent is seeking to prevent the other parent from having overseas visitation
with the child or relocating with the child to another country. However it is
also useful in a myriad of other cases.

Such testimony might concern:

-The factors that
indicate that an individual is likely to commit an international child
abduction;

-The degree of the risk
of an international child abduction that is presented by an individual having
specific risk factors;

-The sufficiency of
terms of a proposed custody order in preventing a potential international child
abduction;

-The likelihood that a
foreign country will return an abducted child;

-The lawyer's experience
with and knowledge of a specific legal system;

-The division of foreign
marital assets;

-The discovery of hidden
marital assets; and

-The enforcement of
foreign divorce and custody judgments.

Jeremy D. Morley has frequently appeared as an expert
witness on international child abduction prevention, international child
abduction recovery, international divorce jurisdiction and international family
law.

Mr. Morley has submitted evidence as an expert in courts in the United
States, Canada and Australia, in the form of testimony,
affidavits or affirmations, as to such international family law matters as:

-The terms that should
be in a custody order that will allow international visitation but will
minimize the risk that the child may not be voluntarily returned;

-The family law system
in Japan;

-The fact that
particular left-behind parents would be unable to secure any meaningful
assistance from the Japanese courts (many cases);

-The extent of Italy's
compliance with its obligations under the Hague Convention;

-Whether certain actions
committed by a parent constituted international parental child kidnapping
within the meaning of the International Parental Kidnapping Crime Act;

Friday, February 13, 2015

In a case decided in 2014 Sir James Munby, the
President of the Family Division of the High Court of Justice, provided the
following extremely helpful and straightforward recitation of the basic legal
principles that apply in England and Wales concerning divorce jurisdiction:

1.In the circumstances, and bearing in mind in
particular that this judgment will be read by many unfamiliar with our court
system, I think it important to give a judgment more detailed in some respects
than might otherwise be appropriate.

2.By
way of preliminary, I should explain that within the United Kingdom there are
three separate legal systems. Scotland and Northern Ireland each has its own
legal system. I am sitting as a judge of the courts of England and Wales (what
for convenience I shall refer to as “the English court”) applying the law of
England and Wales (what for convenience I shall refer to as “English
law”).

English law: divorce proceedings in the English court

3.An application for divorce is made in the
English court by an originating process called a petition. The person applying
for divorce is called the petitioner; the other spouse is called the
respondent. An order for divorce is called a decree. The first decree is called
a decree nisi: it is a provisional order which does not itself terminate the
marriage. The second decree is called a decree absolute: it is a final order
which brings the marriage to an end.

4.The first thing I must consider is the
jurisdiction of the English court in matters of divorce. For reasons which will
become apparent in due course, it is important to distinguish two different
senses in which the word jurisdiction is used. The first, what I will call
“jurisdiction to entertain the petition”, goes to the logically prior question
of whether the English court has any jurisdiction at all to receive, hear and
consider the petition. The other, what I will call “jurisdiction to grant a
decree”, goes to the question of whether the English court, assuming that it
has jurisdiction to entertain the petition, has jurisdiction to grant a decree
of divorce. I will consider these in turn.

5.Jurisdiction to entertain the petition is
conferred by section 5(2) of the Domicile and Matrimonial Proceedings Act 1973:

“The court shall have jurisdiction to entertain proceedings for divorce
… if (and only if)

(a)the court has
jurisdiction under the Council Regulation; or

(b)no court of a
Contracting State has jurisdiction under the Council Regulation and either of
the parties to the marriage is domiciled in England and Wales on the date when
the proceedings are begun.”

The Council Regulation is defined in section
5(1A) as meaning:

“Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial
matters and matters of parental responsibility.”

6.So far as is material for present purposes,
Article 3 of the Council Regulation provides as follows:

“1 In matters relating to
divorce … jurisdiction shall lie with the courts of the Member State

(a)in whose territory:

–the spouses are
habitually resident, or

–the spouses were last
habitually resident, insofar as one of them still resides there, or

–the respondent is
habitually resident, or

–in the event of a joint
application, either of the spouses is habitually resident, or

–the applicant is
habitually resident if he or she resided there for at least a year immediately
before the application was made, or

–the applicant is
habitually resident if he or she resided there for at least six months
immediately before the application was made and is either a national of the
Member State in question or, in the case of the United Kingdom and Ireland, has
his or her “domicile” there;

(b)of the nationality of
both spouses or, in the case of the United Kingdom and Ireland, of the
“domicile” of both spouses.

2 For the
purpose of this Regulation, “domicile” shall have the same meaning as it has
under the legal systems of the United Kingdom and Ireland.”

In
each of the cases before me jurisdiction was sought to be founded in accordance
with, in most of the cases, the fifth or, in a small minority of the cases, the
third limb of Article 3.1(a). So, in every case it was being asserted that
either the applicant (the petitioner) or the respondent was habitually resident
in England and Wales.

7.Jurisdiction to grant a decree, assuming that
the English court has jurisdiction to entertain the petition, depends upon
section 1 of the Matrimonial Causes Act 1973, which so far as material for
present purposes provides as follow:

“(1)… a petition for divorce
may be presented to the court by either party to a marriage on the ground that
the marriage has broken down irretrievably.

(2) The court hearing a
petition for divorce shall not hold the marriage to have broken down
irretrievably unless the petitioner satisfies the court of one or more of the
following facts, that is to say –

(a)that the respondent has
committed adultery and the petitioner finds it intolerable to live with the
respondent;

(b)that the respondent has
behaved in such a way that the petitioner cannot reasonably be expected to live
with the respondent;

(c)that the respondent has
deserted the petitioner for a continuous period of at least two years
immediately preceding the presentation of the petition;

(d)that the parties of the
marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the petition … and the respondent
consents to a decree being granted;

(e)that the parties to the
marriage have lived apart for a continuous period of at least five years
immediately preceding the presentation of the petition … ”

Thursday, February 12, 2015

When children are abducted to Mexico by a parent who insists on retaining the child there, it is generally extremely difficult - and it is often impossible -- to secure their return. The difficulty is enhanced substantially if the taking parent has asserted that the other parent is abusive or has engaged in inappropriate conduct towards the parent or the child.

Mexico is the principal destination for international parental child abductions from the United States and it accounts for well over half of all the unresolved cases about which the State Department complains in its annual compliance reports.

The problems with abductions to Mexico are numerous.

Thefirst problemis that it can be extremely difficult even to locate an abducted child in Mexico, and it is very easy for a taking parent to disappear with an abducted child. The law enforcement authorities in Mexico are often not helpful and their resources are stretched too thin.

Thesecond problemis that there is no equivalent to the Uniform Child Custody Jurisdiction & Enforcement Act in Mexico. There is no process to register foreign custody orders there and no way to obtain a "mirror order" in Mexico that would oblige the Mexican courts to respect and enforce a foreign court order if a child were subsequently taken to Mexico.

Thethird problemis that Mexican courts do not effectively apply the Hague Convention on the Civil Aspects of International Child Abduction, which is the principal method of returning children abducted to Mexico.

Thefourth problemis that there are extremely long delays in the resolution of Hague Convention cases in Mexico. Such delays are exacerbated by the availability of multiple applications and a special process for filing what is known as an "amparo" for separate review of concluded cases on constitutional grounds.

One parent testified before a committee of the House of Representatives that he, his wife and their son lived in the United States; his wife took the child to Mexico and kept him there; that he took urgent and extensive action to get his son back; and that three years later, after a multiplicity of litigation in Mexico, he was still embroiled in the courts there with no end in sight. Such stories are not unusual.

In one case an appeal court in Texas displayed little reluctance in telling some blunt truths about Mexico's consistent breach of its obligations under the Hague Convention, and consequently upheld a decision to require supervision of all visitation between a father and his son since there was a serious risk that the father might abduct the child to Mexico.

Tuesday, February 10, 2015

“Mirror” orders can be a
useful tool in the arsenal of lawyers who handle cases concerning international
child travel and the prevention of potential international child abduction.

Increasingly courts are
being asked to enjoin parents from taking children overseas because of a
parent’s fear that the children will not be returned. Courts must take such
applications extremely seriously, especially if a child is likely to be taken
to a country that is not a party to the Hague Convention on the Civil Aspects of
International Child Abduction, or that does not return children promptly to
their habitual residence. On the other hand it is also well-recognized that
children have an interest in seeing the world and that children with a foreign
parent should be encouraged to learn of their overseas heritage and to get to
know their distant family.

A potentially
left-behind parent’s application for an injunction is usually supported by: (a)
Expert testimony as to the practices and laws concerning international child abduction
and international child custody in the country to which the child may be taken (2);
(b) Expert testimony as to the "red flags" or "risk
factors" that research establishes are the indicia that a particular
parent might indeed abduct his or child; and (c) Lay testimony as to any facts
that establish the existence of any and all such risk factors.

In such cases, a judge
will invariably ask a basic question: "What conditions can I include in my
order that will minimize the risk that the child will be returned?"
Unfortunately, the true answer is often "None" -- as evidenced by the
epidemic of “successful” abductions to countries such as Japan, frequently in
flagrant violation of court orders.

However, in many cases,
a useful suggestion is that the order should require the taking parent to
obtain a "mirror order" from a court in the foreign jurisdiction
before being allowed to take the child overseas.

A mirror order is one
that is issued by another court which contains the same terms as those that are
contained in the order that is being mirrored. Inherent in the mirror order
concept is the fact that the foreign court shall have the right -- and more
importantly the obligation -- to enforce the terms contained in the order,
specifically including the obligation to effectuate the prompt return of
the child at the end of a designated period of time. Equally critical is that
the foreign court should not be permitted to modify the original order.

The viability of such a
requirement varies substantially from country to country. Thus a very recent
decision of the Supreme Court of India makes it clear that the courts in India
will not allow mirror orders to be entered in child custody matters and that
they will always conduct a full plenary review of the child's best interests
(which invariably equate to a decision that the child -- who, by the time of
the ultimate decision has typically been in India for some years -- should
remain in India). (3)

It is also obvious that
a court in Japan, even in the utterly unlikely event that it were to issue a
mirror order, would not enforce the terms of any such order since its family
law system is toothless and its orders are invariably not enforced. (4)

By contrast, a country such as Australia has a custody registration system that
operates in a very similar way to the system of registration of foreign custody
orders in the Uniform Child Custody Jurisdiction & Enforcement Act.
However, Australia is very much the exception rather than the rule. The
European Union has a registration system but it applies only to orders issued
by an E.U. court and the practice within Europe varies substantially from
country to country.

Indeed, foreign lawyers are generally shocked and amazed when they learn of the
registration provisions in the UCCJEA. In particular, they are often shocked
that a U.S. court will generally have exclusive continuing jurisdiction for
many years after a child has left the jurisdiction as long as one parent
continues to live there.

The issue was recently
before the Court of Appeal in England. (5) Since that
Court is headed by a judge who is also that country's "Head of
International Family Law" its decisions on such issues are far less like
to be parochial than similar rulings from some courts in the United States and
many other countries.

In the English case, the
child was living in Malaysia. A Malaysian court gave custody to the father, an
English national, and contact to the mother "at reasonable times".
The father then asked an English court for a mirror order so that he could
apply for a British passport for the child. However, the English court not only
issued a mirror order but it also granted the mother’s application to reopen
the entire case. On appeal, the English Court of Appeal ruled that the trial
court has been right to issue the mirror order but wrong to claim any broader
jurisdiction. It made clear that a litigant who seeks a mirror order does not
accept the jurisdiction of the court to do any more than reiterate the
provisions of the order issues by the primary jurisdiction. By definition, an
application for a mirror order cannot supplant the primary jurisdiction. The
Court ruled that if the mother wished to challenge the order or seek
specific contact she should apply in Malaysia.

Lawyers bringing
applications to enjoin children's foreign travel, and lawyers opposing such
applications, need to tailor their presentations and their proposals to the
specific laws, procedures, customs and practices concerning international
family law, international child custody and international child abduction of
the specific country or countries that the child is to visit or may be taken
to. (6)

Thus, it is important to
understand that merely because an American court conditions an event upon a
foreign mirror order, the foreign court might not have jurisdiction to issue
any such order. That situation arose in Danaipour v. McLarey (7)in
which a district court in Massachusetts acted on the mistaken assumption that a
Swedish court would provide a stipulated mirror order but in fact the Swedish
court refused to do so.

Another critical factor
is that once a child is taken into a foreign country it may be extremely
difficult to bring a child home because of the stringent exit controls that
many countries have that require the written consent of both parents or a sole
custody order to remove a child. This is particularly the case with South
American countries. Even if a U.S. court issues the requisite order it may have
no effect in a foreign country or, even if ultimately effective, the lack of a
local court order might cause significant border delays.

Some examples of issues
that have arisen in my office concerning mirror orders are the following:

-A
client was legitimately worried that a child would be retained in Bermuda if
the father took him to visit his family there. Upon our advice, the client
negotiated a strong New York consent order that specified that New York had
continuing exclusive jurisdiction, that contained a host of other protective
clauses and that permitted a visit to Bermuda only if a mirror order were first
obtained. Subsequently, the father asserted that he had been unable to obtain
the requisite mirror order from the Bermudan courts. As a result the Family
Court authorized a visit without the mirror order. We successfully obtained
from the Appellate Division, First Department an emergency order barring the
scheduled visit.

-Our
client settled an action under the Hague Abduction Convention by agreeing to
limited and supervised visitation between the father and the child in Quebec,
Canada, conditioned on the child’s prompt return to New York. We insisted that
a mirror order be obtained from the Quebec courts before any visit could
occur. Again, the father reported difficulty on obtaining the required order,
which led to a delay in the scheduled visitation. Only when the mirror order
was in place did visitation in Canada successfully occur.

-In
many cases I have suggested, as part of my written expert evidence or expert
trial testimony, that a mirror agreement would be futile because the family law
system of the foreign country could not be relied on to enforce the mirror
order. For example, I recently so testified as to China.

-In
other cases I have testified that a mirror order might be a good idea because
it would provide useful additional security for the prompt return of the child
if the parent taking the child for an overseas visit were to keep the child
overseas and because the family law system in such country is reliable and
effective (e.g. I have so testified as to Italy and Hong Kong).

In conclusion, mirror agreement requirements may be useful
depending on the circumstances. But they may also be counter-productive if they
induce a false sense of security. They should never be requested or opposed
except by counsel having full knowledge and understanding of international
family law.

(1). Jeremy D. Morley concentrates on
international family law. He may be reached at 212-372-3425. He is the author
of the treatise, International Family Law Practice. His websites
are www.international-divorce.com and www.internationalprenuptials.com. His
blog is www.international familylawfirm.com.

(2). Thus the author has provided such
evidence as to many such countries including India, Japan, Colombia, China,
Taiwan, Egypt, Italy, Hungary, Saudi Arabia, Mexico, Venezuela, the United Arab
Emirates, Jordan and Mexico.

(6). An example of a critical factor that
is often overlooked is that a visit to one country may permit an easy visit to
another country. Thus, once a child is in any European country that is within
the "Schengen Zone" the child may be taken to any other such country
without passing through any passport control.

Tuesday, February 03, 2015

Jurisdiction
to handle child custody matters, which are referred to in some Canadian
provinces (British Columbia and Alberta) as “parenting” or “parentage” matters
or as guardianship matters (e.g. Saskatchewan), rests in part on the Canadian federal
law and in part on provincial law.

A.Canadian
Federal Law.

The
Divorce Act of Canada regulates the initiation of divorce cases in all
provincial courts throughout Canada.

If
a case for divorce is properly brought in a Canadian provincial court, the Act
contains provisions allowing child custody issues to be determined within the
divorce case.

Thus,
the starting point for such custody jurisdiction is whether the parties are
married and whether a divorce case can be initiated. Section 3 of the Act
provides that a court in a province has jurisdiction to hear and determine a
divorce proceeding if either spouse has been “ordinarily resident in the
province for at least one year immediately preceding the commencement of the
proceeding.”

Section
4 of the Act provides that such court then has jurisdiction to deal with
“corollary” matters --which are expressly defined in Section 2 of the Act to
include “custody” matters -- provided that either spouse “is ordinarily
resident in the province at the commencement of the proceeding” or both spouses
accept the jurisdiction of the court.

Section
20 of the Act provides that Divorce
Act orders have effect throughout Canada and may be registered in the
court of any province and be enforced as an order of that court.

B.Laws of
Canadian Provinces

If
the parents are not engaged in a divorce case in which child custody is also an
issue, a parent can initiate a case for child custody under the statutory or
common law of a Canadian province.

a.Common law

At
common law, Canadian provincial courts had custody jurisdiction if the child
was present, resident, or domiciled in the jurisdiction at the time proceedings
were commenced. Most Canadian provinces have enacted legislation that defines
custody jurisdiction in place of the common law principles. However, some
provinces have not enacted such a law and they continues to apply the common
law rules. See e.g. Detcheverry v.
Herritt, 2013 NSSC 315.

b.Parens Patriae

Canadian
courts also have “parens patriae”
jurisdiction, under which the sovereign authority is understood to have an
inherent and overriding power to take actions necessary to protect children. For
example, in one case a court in Ontario accepted jurisdiction over children in
Saudi Arabia who had previously lived in Toronto, had then moved to Saudi
Arabia, whose mother had returned to Canada with only one child and had been
left in Saudi Arabia where there was no evidence that the courts would protect
them. Johnson v. Athimootil, 2007 CanLII 41434 (ON SC).

In
Ontario, the rules are contained in Sections 22 and 23 of the Children’s Law
Reform Act. Those provisions are as follows:

Jurisdiction

22. (1) A
court shall only exercise its jurisdiction to make an order for custody of or
access to a child where,

(a) the child is habitually resident in Ontario at the
commencement of the application for the order;

(b) although the child is not habitually resident in
Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the
commencement of the application for the order,

(ii) that substantial evidence concerning the best
interests of the child is available in Ontario,

(iii) that no application for custody of or access to the
child is pending before an extra-provincial tribunal in another place where the
child is habitually resident,

(iv) that no extra-provincial order in respect of custody
of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection
with Ontario, and

(vi) that, on the balance of convenience, it is appropriate
for jurisdiction to be exercised in Ontario.”

R.S.O. 1990, c. C.12,
s. 22 (1).

Habitual residence

(2) A
child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with
one parent under a separation agreement or with the consent, implied consent or
acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis
for a significant period of time, whichever
last occurred.

Abduction

(3) The
removal or withholding of a child without the consent of the person having
custody of the child does not alter the habitual residence of the child unless
there has been acquiescence or undue delay in commencing due process by the
person from whom the child is removed or withheld.

Serious harm to child

23. Despite
sections 22 and 41, a court may exercise its jurisdiction to make or to vary an
order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the
balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally
entitled to custody of the child,

(ii) the child is returned to the custody of the person
legally entitled to custody of the child, or

(iii) the child is removed from Ontario.”

d.Quebec

In Quebec the
Civil Code provides that, “The Québec authorities have jurisdiction
to decide as to the custody
of a child provided
he is domiciled in Québec.” Civil Code, Article 3142. Article 75 of the Code
provides that “The domicile of a person, for the
exercise of his civil rights, is at the place of his principal establishment.”

Article76 provides that, to change domicile, a person must
actually reside in another place and must have the intention to make it the
seat of his or her principal establishment. The proof of such intention results
from the declarations of the person and from the circumstances of the case.
Section 77 provides that “The residence of a person is the place where he
ordinarily resides; if a person has more than one residence, his principal
residence is considered in establishing his domicile.”

Articvle
80 of the Code provides that, “ Article
80 of the Code provides that, “An unemancipated minor is domiciled with his
tutor. Where the father and mother exercise the tutorship but have no common domicile, the minor is presumed to be domiciled with the
parent with whom he usually resides unless the court has fixed the domicile of the child elsewhere.”

The Code also provides that, “Even
though a Québec authority has jurisdiction to hear a dispute, it may
exceptionally and on an application by a party, decline jurisdiction if it
considers that the authorities of another country are in a better position to
decide.” Civil Code, Article 3135.

e. Saskatchewan

The
jurisdictional rules in Saskatchewan concerning child custody mirror those in
Ontario in most – but not all -- respects. Section 15, Saskatchewan Children’s
Law Act, 1997.

One important exception is that custody
jurisdiction in Saskatchewan can be based solely upon the parties’ having
consented to it. (Section 15 (c).

In addition,
while Saskatchewan’s definition of habitual residence is the same as Ontario’s,
the Saskatchewan law provides that if the child’s
habitual residence cannot be determined pursuant to the regular provisions, the
child is to be considered as habitually resident in “the jurisdiction with
which the child has the closest connection.”

Nova Scotia has not
enacted any law that specifies the terms under which it may assert child custody
jurisdiction, except that Section 32A of the Judicature Act simply authorizes
the Supreme Court (Family Division) to exercise jurisdiction in relation to
custody and access to children and parens
patriae jurisdiction.

Accordingly, the
general common law rules apply in Nova Scotia.Detcheverry v. Herritt, supra.

h. Alberta

Alberta has not enacted
any law that specifies the terms under which it may assert child custody
(parenting) jurisdiction.

Section 74 of the
Family Law Act of British Columbia contains rules concerning jurisdiction in
parenting matters that parallel those that are provided by the Ontario statute
(though with some language variations).

j. Manitoba

Manitoba has not
enacted any law that specifies the terms under which it may assert child
custody (parenting) jurisdiction.

[1]
Jeremy Morley, a New York lawyer, taught private international law at the
University of New Brunswick, Canada Faculty of Law. He handles many
international family law issues that have a Canadian connection, always working
with local counsel in Canada as appropriate.

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Jeremy D. Morley was admitted to the New York Bar in 1975 and concentrates on international family law. His firm works with clients around the world from New York , with a global network of local counsel. Mr. Morley is the author of "International Family Law Practice," the leading treatise on international family law in the United States. He is also the author of “The Hague Abduction Convention: Practical issues and Procedures for Family Lawyers.” He is the former co-chair of the International Family Law Committee of the International Law Section of the ABA. He is a member of the International Academy of Family Lawyers. He was born in Manchester, England and has taught in law schools in the United States, Canada and England. Mr. Morley frequently lectures on international family law topics to the judiciary, bar associations and others. Mr. Morley is frequently asked to appear as an expert witness on international child abduction prevention and recovery issues. Mr. Morley has been a frequent guest on television and radio shows on the topic of international child abduction and international divorce law and has been featured in the print media on numerous occasions.